Why it's a mistake for Chief Justice Ngcobo to stay on

Eusebius McKaiser says President Zuma has erred politically and constitutionally

President Jacob Zuma has made both a constitutional and a political mistake in extending Chief Justice Sandile Ngcobo's term as head of the Constitutional Court.

It is a constitutional mistake because the legislation in terms of which he acted is itself unconstitutional. It is a political mistake because the decision puts unnecessary pressure on the doctrine of separation of powers.

On the constitutional side, three arguments undercut the legality of Zuma's decision.

First, section 176(1) of the constitution clearly states that an extension is only possible if "an Act of Parliament extends the term of office of a Constitutional Court judge." No such Act was passed in terms of which Chief Justice Ngcobo is permitted to stay on.

Indeed, it is mindboggling that the Chief Justice, an excellent legal scholar, should accept an offer to stay on in his job when he knows that such an offer does not comply with section 176(1) of the constitution.

Second, section 8(a) of the Judges Remuneration and Conditions of Employment Act does, indeed, state that the President may extend the Chief Justice's term of office.

However, it is important to note that this clause (even if it is constitutionally valid) is not an Act of Parliament as envisaged by section 176(1) of the constitution. Parliament itself needs to pass an explicit law that extends the Chief Justice's term. So the requirement in section 176(1) is not satisfied.  

Third, section 8(a) of the Judges Remuneration Act is clearly unconstitutional anyway.  It effectively gives the President unfettered prerogatory power. His decision does not even need to comply with the normal checks and balances, such as the short-listing and interviewing processes of the Judicial Service Commission, or even the requirement that other political parties be consulted.

And, of course, Parliament would be outsourcing its obligation in terms of section 176(1) to the President rather than discharging that obligation. This might look procedurally acceptable but is surely a substantive failure to meet the letter and the spirit of section 176(1) of the constitution. It would be like Parliament giving the Executive exclusive power to pass general laws.

Politically speaking, the decision is also a mistake. The political mistake is, in part, legal in character. The judiciary must be independent of the Executive. This must actually be the case, and must be seen to be the case. Judicial integrity requires this. Political legitimacy also requires that the actions of the state be subject to the laws of the country, especially subject to the constitution.

This does not mean that tension or conflict or overlaps between the different arms of government are always a bad thing. The point, however, is that we must minimise the possibility of influence on the work of the judiciary, including the appearance of influence.

We should err on the side of narrowing the space and opportunity for influence. This is good both for the legal system's reputation and, though it might not strike some as obviously so, it is also good for the reputation of government itself.

A government who wins a Constitutional Court case, for example, is more likely to look like an honest winner if the court is undoubtedly impartial, and known to serve without fearing or favouring anyone in the land.

And that is the crux of the political mistake. If a Chief Justice knows that an extension offer might be made, it is possible that he can try to use his judicial leadership to find cases in favour of government or in favour of the President. This might not actually happen. But the possibility is unnecessarily being introduced by a system that allows the President the option of granting an extension.

The doctrine of separation of powers requires us to keep the judiciary and the Executive independent of each other. Section 8(a) of the Judges Remuneration Act is clearly antithetical to judicial independence and separation of powers more generally. It is therefore both unconstitutional and politically ill-advised.

Is Chief Justice Ngcobo fit for office? Yes he is. The mistake is a principled one and so should not be seen as an attack on Ngcobo's credentials. Did the President act in bad faith? We can assume it was a bona fide decision that the country needs Chief Justice Ncgobo.

However, a mistake is a mistake is a mistake. Ngcobo's fitness, just like Chief Justice Chaskalson's fitness some ten years back, should not result in us setting a dangerous precedent.

Similarly, the fact the President might have acted from honest motives, does not mean the decision is necessarily praiseworthy.

It is unfortunate enough that section 176(1) even allows Parliament to extend the Chief Justice's term. That amendment to section 176(1) was a mistake that had arisen to enable Chief Justice Chaskalson to stay on as Chief Justice (though that did not happen). The amendment is regrettable. That is all water under the Chaskalson bridge.

President Zuma cannot now ignore what the amendment actually says. Parliament, not the President, should decide whether or not Chief Justice Ngcobo stays pm. And if Parliament does debate the issue, let's all hope that they appreciate the fact that a renewable contract for the post of Chief Justice is undesirable. Renewability is what makes an appointee susceptible to influence.

Terms must be fixed, or for life, so that no ‘job security' related influences can even have a chance of creeping into the work of the Court. Parliament should decline to pass an Act in terms of section 176(1) of the Constitution.

Politics, of course, often has its own logic. And hence the mistake on the President's part, regrettably, has already happened. If Zuma's decision were set aside by the Constitutional Court itself for the reasons outlined here (which I bet money will be the case), I predict that, after that outcome, a pliant ANC majority in Parliament will simply pass the relevant Act that would enable Chief Justice Ngcobo to stay on in accordance with section 176(1) of the Constitution. I would be delighted to eat the nearest hat I can find should this not come about.

McKaiser is a political analyst based at the Wits Centre for Ethics

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